Before Judges Skillman and Conley.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County.
Defendant, a public housing tenant of plaintiff Housing Authority and Urban Redevelopment Agency of Atlantic City (Authority), appeals an August 31, 1999, order entered in the Authority's nonpayment of rent summary dispossession action. The order declares that "late fees, attorneys' fees and court costs as set forth in Defendant's lease with the [Authority] are deemed valid in this summary dispossession action" and grants judgment of possession to the Authority as of a certain date in the event that defendant had not, by that date, made payment to the Authority of not only the back rent of $972, but also a late fee of $20 plus attorneys' fees and court cost of $144.50. Defendant had previously deposited the back rent. Although there is nothing in the rather sparse record before us to show whether she paid the additional fees and costs totaling $164.50 so as to ward off the entry of the judgment of possession and issuance of a warrant of removal, we are informed by counsel that that money was deposited with the clerk of the court. Should we affirm the trial judge, the additional $164.50 will be turned over to the Authority; should we reverse, it will be returned to defendant. In either event, defendant will remain a tenant of the Authority.
This appeal then involves the Authority's entitlement to the disputed late fees, attorneys' fees, and court costs in the context of the circumstances before us. To crystallize exactly what the issue is, several concessions by defendant must be noted. Defendant does not dispute or raise any issue as to the existence and validity of the governing lease provisions which provide for late fees, attorneys' fees, and court costs in the event of a nonpayment of rent and a summary dispossess action. *fn1 Neither does defendant contend that these lease charges are prohibited by the governing federal public housing law. But it is defendant's position that payment thereof cannot, by virtue of federal law, be made a condition of the dismissal of a summary dispossess action. We disagree.
In a nonpayment of rent summary dispossess action, it is well recognized under our state law that if the tenant "before entry of final judgment, pay[s] to the clerk of the court the rent claimed to be in default, together with the accrued costs of the proceedings, all proceedings shall be stopped[,]" and the complaint dismissed. N.J.S.A. 2A:18-55; Housing Auth. of City of Wildwood v. Hayward, 81 N.J. 311, 316 (1979). Even where the tenant is a public housing tenant, such accrued costs can include attorneys' fees and costs where so provided by lease. University Court v. Mahasin, 166 N.J. Super. 551, 553-54 (App. Div. 1979); Trenton Hous. Auth. v. Green, 118 N.J. Super. 544, 545-46 (App. Div.), certif. denied, 61 N.J. 159 (1972). See also Community Realty Management, Inc. v. Harris, 155 N.J. 212, 233-34 (1998).
Plaintiff, as a federally funded public housing authority, is subject to the applicable federal law and regulations. As we have said, defendant does not contend that the lease provisions for late fees, attorneys' fees, and court costs are prohibited by or are inconsistent with that federal law. Indeed, the federal law recognizes that such lease provisions are permissible. See 24 C.F.R. 966.4 (b)(3) ("Late payment penalties. At the option of the [public housing authority], the lease may provide for payment of penalties for late payment."); 24 C.F.R. 966.6(h) (prohibiting lease provisions that require the tenant to pay attorneys' fees or other legal costs arising from a legal action brought by the public housing authority even when the tenant prevails, but stating that the "[p]rohibition of this type of provision does not mean that the tenant as a party to the lawsuit may not be obligated to pay attorneys' fees or other costs if he loses the suit.").
Nonetheless, it is defendant's contention that, in a nonpayment of rent dispossess action, conditioning a public housing tenant's legal right to avoid a judgment of possession upon not only payment of accrued back rent but the additional fees and costs that may have accrued by virtue of the governing lease provisions is violative of 42 U.S.C. § 1437a(a)(1).
[A] family shall pay as rent . . . the highest of the following amounts, rounded to the nearest dollar:
(A) 30 per centum of the family's monthly adjusted income;
(B) 10 per centum of the family's monthly income; or
(C) if the family is receiving payments for welfare assistance from a public agency and a part of such payments, adjusted in accordance with the family's actual housing costs, is specifically designated by such agency to meet the family's housing costs, the portion of ...